from the memorials-and-continuing-action dept

For those of us who crossed paths, even if briefly, with Aaron Swartz during his short lifetime, this week was certainly a difficult one. He accomplished so much, but the really distressing point is how much more all of us expected him to accomplish in the future, and how we will all be worse off without that happening. I have a big list of people who I've asked to do the weekly Techdirt favorites -- along with many people who I want to ask, and each week I pick people off of that list. Aaron's been on that list for a long, long time, and I never got around to asking him. And now I never will.

This week, instead of our usual "favorites of the week" post from the community, I wanted to bring together some of the posts we had about Aaron, and ask people to reflect, and think about how to help continue to build out the legacy of some of what Aaron started.

First off, we had our initial post trying to highlight just how much of a loss this was for everyone. This is a point that many who didn't know him still don't understand. Aaron could be strong-willed and stubborn at times -- and always rubbed some people the wrong way -- but I don't know anyone who knew him who didn't think that he did amazing things and likely would continue to do amazing things going forward.

A key aspect of all of this, of course, was the case against Aaron. Whether or not you believe that triggered the suicide, it was worth exploring the case on the merits -- which we found to be seriously lacking. For what it's worth (because I know people will bring it up), lawyer and legal scholar Orin Kerr -- who I greatly respect, and often agree with -- has published a series of pieces in which he argues that the case and the prosecution had merit, even if he still believes strongly that the law it was based on, the CFAA, is greatly in need of fixing. Kerr's opinion is one such opinion -- and while interesting and well thought out, it fails to convince me for a couple of key reasons.

First, much of it seems to be arguing against a strawman. While he agrees that there are problems with the CFAA, he seems upset that people are focusing on the CFAA because of Aaron, and seems to suggest people should be upset about the larger issues with the act. But... we are. Lots of people are. There have been tons of discussions about how Swartz's case is not unique and how the problems of the CFAA and over-aggressive prosecution are systemic and not outliers. So I'm not sure what he's arguing against there, other than a strawman.

But, more importantly, I think Kerr errs in making statements about some of what happened, which he portrays in the most negative light, not even assuming that there may be perfectly reasonable, non-nefarious, reasons for those actions. Changing your IP address, and later your MAC address, are valid ways of troubleshooting why something stopped working -- to locate where the issue is cropping up. They are not, automatically, suggestions that someone is trying to avoid a block or hide one's identity. I am, of course, not the only one who has a problem with Kerr's analysis. Plenty of legal scholars have spoken up about why they believe Kerr is misguided on this particular case. For example, legal scholar Jamie Boyle does a wonderful job of walking through Kerr's argument and highlighting where his interpretations and understanding of what Aaron may have done (or what his motives were) could very well be mistaken.

Either way, we agree with Kerr that the laws under which Swartz was charged are problematic. As Tim Wu noted, they're so broad that almost anyone can be a felon. In fact, law professor James Grimmelmann noted that he, too, could be guilty of the exact same thing that Aaron was charged with, if a prosecutor decided he or she wanted to take Grimmelmann down. Furthermore, the maximum prison time trumpeted by US Attorney Carmen Ortiz seems so disproportionate not just to the "crime" (if there was one), but also when compared to the maximum punishment people face for real crimes.

While the US Attorneys Office initially stayed silent, Carmen Ortiz's husband, IBM exec Tom Dolan, first started sniping on Twitter, criticizing the Swartz's family just a few days after his suicide. Talk about insulting. The next day, Ortiz finally came out with a statement. Unlike MIT's statement -- which admitted that the institution needed to reflect carefully on what happen and set up an investigation to explore whether it could have done better, Ortiz's statement not only took a very defensive stance, but came across as both tone deaf and completely disconnected from reality. She claimed that she and her colleagues realized that Aaron's "crime" wasn't that big of a deal, which is why they offered him a plea bargain -- whereby he needed to plead guilty to 13 felonies and they'd only recommend 6 months in jail (the judge could choose a different amount of time) -- but ignored how she and her colleagues used the possibility of 35 years or more to threaten and badger Aaron as they tried to coax the plea bargain out of him. Larry Lessig gets it right here in expressing his sheer anger at Ortiz's statement. He berates himself for even thinking that Ortiz might at least be somewhat self-reflective and admit that perhaps the issues should be explored.

The dumbest-fucking-naive-allegedly-smart person you will ever know: that guy thought this tragedy would at least shake for one second the facade of certainty that is our government, and allow at least a tiny light of recognition to shine through, and in that tiny ray, maybe a question, a pause, a moment of “ok, we need to look at this carefully.” I wasn’t dumb enough to believe that Ortiz could achieve the grace of [MIT President] Reif. But the single gift I wanted was at least a clumsy, hesitating, “we’re going to look at this carefully, and think about whether mistakes might have been made.”

Of course, if the US Attorney's Office refuses to think twice about this, at least some in Congress are now looking to force them to do so. Rep. Zoe Lofgren promised to reform the CFAA. Rep. Darrell Issa promised to investigate the DOJ's handling of the case. And Senator John Cornyn stepped up to the plate with a series of questions about the case, sent to Attorney General Eric Holder. Hopefully, something actually happens. We need real change, rather than bogus statements... and more people bullied by the increasingly misnamed Justice Department.

But, finally, in all of the anger and frustration and sadness, there is one thing that is most important. Aaron was a builder and a doer (sometimes to a fault). And the best way to honor his memory is to get out there and do stuff: build stuff up and share some knowledge. Thankfully, it's already inspired many researchers to free their own research. It's inspired Dan Bull to write a song, and should have us all thinking about the difference between content and knowledge -- and which is more important.

Finally, yesterday was Internet Freedom Day, commemorating the day the internet went dark to protest SOPA and PIPA. Aaron Swartz was a huge part of making that happen, and yet he didn't live to see the one year anniversary. Many of us in San Francisco gathered last night to celebrate the day, but the memory of Swartz was a big part of it as well. Peter Eckersly told the flip side of Swartz's great video about his own role in stopping SOPA and PIPA. Of all the people who deserved to bask in the success of that day last year, it's Swartz, who should have been at one of these gatherings telling his own story, rather than having to have someone else share it.

This week, these are not my favorite posts. Far from it. These posts are a lament for what we've lost, a plea to prevent any more such losses, and a smidgen of hope that within all this tragedy, true reform might blossom. From my interactions with Aaron, I believe it's exactly the sort of response he'd want -- even if we'd all prefer that he were still around to lead the charge, rather than merely be the inspiration for it all. Aaron's gone and the world is worse off for it. But let it be a challenge to all of us to do more, to do better, and to at least try to replace some tiny piece of what we've lost.